Vivian Epps v. Cvs Health Corporation ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 16 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIVIAN EPPS, No. 19-16100
Plaintiff-Appellant, D.C. No. 2:18-cv-01274-DGC
v.
MEMORANDUM*
CVS HEALTH CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted September 8, 2020**
Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.
Vivian Epps appeals pro se from the district court’s summary judgment in
her diversity action alleging a negligence claim arising out of an incident at a CVS
store. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of
discretion. Glick v. Edwards, 803 F.3d 505, 508 (9th Cir. 2015) (recusal); Valdivia
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
v. Schwarzenegger, 599 F.3d 984, 988 (9th Cir. 2010) (Fed. R. Civ. P. 60(b));
DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 852 (9th Cir. 2007) (default
judgment). We affirm.
Epps failed to include any argument in her opening brief regarding the
district court’s grant of summary judgment on her claims, and thus has waived any
challenge to that issue. See McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir.
2009) (arguments not raised in an appellant’s opening brief are waived).
The district court did not abuse its discretion in denying Epps’s Rule 60(b)
motions because Epps presented no basis for post-judgment relief. See Fed. R.
Civ. P. 60(b); Feature Realty, Inc. v. City of Spokane, 331 F.3d 1082, 1093 (9th
Cir. 2003) (relief under Rule 60(b) is warranted only where the moving party can
show: (i) “newly discovered evidence” within the meaning of Rule 60(b); (ii) that,
with the exercise of due diligence, could not have been discovered earlier; and (iii)
that earlier production of which would have likely changed the disposition of the
case).
The district court did not abuse its discretion in denying Epps’s motions for
default judgement where defendant indicated that it intended to defend the action
by appearing and filing an answer and a motion to dismiss. See Direct Mail
Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 689 (9th Cir.
1988) (a default judgment is inappropriate if defendant indicates its intent to
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defend the action); Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986)
(explaining that “default judgments are ordinarily disfavored” and courts should
consider several factors in entering a default judgment).
The district court did not abuse its discretion in denying Epps’s motion to
recuse District Judge Campbell because Epps failed to demonstrate any basis for
recusal. See United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997)
(discussing standard for recusal under 28 U.S.C. §§ 144 and 455); United States v.
McChesney, 871 F.3d 801, 807 (9th Cir. 2017) (judicial rulings are not a proper
basis for recusal).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
All pending motions are denied.
AFFIRMED.
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